“The Court of Appeal decided this ground of appeal should fail but, in doing so, it was extremely critical of the judge for his conduct, suggesting it was a ‘disgraceful letter to write’ and showed a ‘lack of understanding of the proper role of a judge’. However, the fact that he acted in such a ‘deplorable way’ was not a reason to allow the bias allegation to succeed.”

Since then, I have been sent a copy of the Houses of Parliament’s Postnote on unintentional bias in court, which is an interesting read. While it focuses on what it describes as “cognitive biases” and how to minimise their influence in the context of criminal trials, it makes a number of points regarding witness evidence that are worth sharing and could apply in most contexts, whether civil or criminal.

Unintentional bias in court

The Postnote starts out by explaining that people are prone to a number of well understood, unintentional errors in reasoning. This makes their decision making susceptible to the influence of “irrelevant factors and preconceptions”. This is known as cognitive bias.

The note goes on to give examples of the three main cognitive biases:

Confirmation bias. This occurs when people seek, weigh or interpret information in a way that conforms to their pre-existing beliefs or assumptions.

Contextual bias. This is when information about the context of an event (or the way information is being presented) influences reasoning but is logically irrelevant to the decision at hand.

Unintentional stereotype bias. This is when people associate certain traits with their perception of a person’s social group, such as race, gender or age. Such associations may influence decisions and behaviour, even though people are unaware they harbour them.

The example given for stereotype bias brings this home. In a video-game simulation, US police officers tended to shoot unarmed black suspects at a higher rate that unarmed white suspects. It is called “weapon bias”. However, it seems that it goes further than that, as studies show that US trial judges and death penalty lawyers “harbour unintentional biases against black people”.

I’m not sure how often that bias may arise in your average construction dispute, but it is worth bearing in mind that we all subconciously have these biases and they can affect us far more than we might realise at first.

Leading questions

One aspect of the Postnote that caught my eye related to the way witnesses are questioned and cross-examined, and how asking leading questions can help to determine whether a witness is being intentionally deceptive.

We will all be familiar with leading questions, those that require the witness to agree with or deny something, such as “Were you at home on Tuesday?”. Such a question allows the witness to answer in a particular way. In this example, with a simple yes or no.

According to the Postnote, asking a leading question can lead to the witness answering in a “significantly less accurate” manner than if the question is non-leading, such as “Where were you on Tuesday?”. Here the witness might seek to clarify their whereabouts and say that they were at home for part of the day, but perhaps out at the crucial time. They will provide much more information to this type of question than a simple yes/no, which allows their evidence to be tested more effectively.

I’ve also heard leading questions referred to as “closed” questions and non-leading questions as “open” questions.

The Postnote also distinguishes between what it calls “directive” and “non-directive” forms of question. The examples here are “The young woman who answered the door had long hair, didn’t she?” and “Did the young woman who answered the door have long hair?”. Such subtle differences to the casual observer, but it is worth being alert to the use of such questioning methods and the different types of answers they may elicit.

Witness confidence and accuracy

This is something that I have discussed before, when I looked at Leggatt J’s assessment of witness evidence in Gestmin v Credit Suisse. In that case, the parties called a total of ten individuals (seven on behalf of Gestmin and three on behalf of Credit Suisse). At the outset Leggatt J highlighted an “obvious difficulty” with the witness evidence, since it was based on allegations and a recollection of events that had occurred seven years earlier, which brought into question the “unreliability of human memory”.

Leggatt J explained that research shows that people are unaware of how unreliable their memories are and believe they are “more faithful” than they actually are. He gives examples of two mistakes people commonly make about the accuracy of their memory:

That the stronger and more vivid is our feeling or experience of recollection, the more likely the recollection is to be accurate.

That the more confident another person is in their recollection, the more likely their recollection is to be accurate.

He also explained how people think of their memories as fixed at the time of the experience, which then fades with time, whereas research has demonstrated that memories are “fluid and malleable” and are “constantly rewritten whenever they are retrieved”. This can manifest itself in external information intruding into the memory, as well as the witness’s own thoughts and beliefs. Both of these factors can dramatically change the memory.

These points are also picked up in the Postnote. For example:

One study showed that the more a witness retold their story, the more certain they were in their recollection.

Other studies have demonstrated the influence that a witnesses’ confidence will have on jurors.

Being aware of cognitive bias

The Postnote refers to a speech by Lord Neuberger in which he cautioned judges to think about how their unconscious attitudes could “play a role in their judgements”. Apparently he is an advocate for understanding how they affect the justice system.

This made me recall one point that I did not make previously about Harb v HRH Prince Abdul, and to comments the Master of the Rolls made regarding what happens when a judge’s patience is “sorely tested by the behaviour of advocates”. As he notes:

“…even if a judge is irritated by or shows hostility towards an advocate, it does not follow that there is a real possibility that it will affect his approach to the parties and jeopardise the fairness of the proceedings… Sometimes a judge will overreact and unwisely make an intemperate comment. But judges are expected to be true to their judicial oaths and not allow their feelings about an advocate to affect their determination of the case they are hearing. The informed and fair-minded observer is to be assumed to know this.”

I thought that it was interesting that the court also noted that a litigant isn’t an “informed and fair-minded observer”. Thus, it may be the case that a party represented by a member of Blackstone Chambers would not want Peter Smith J to be the judge in their case, if they knew about the article and letter. However, they would not be objective. Because of the stress and costs of litigation, they would be “far from dispassionate”:

“Most litigants are likely to oppose anything that they perceive might imperil their prospects of success, even if, when viewed objectively, their perception is not well-founded.”

I appreciate it doesn’t really have anything to do with cognitive bias as discussed in the Postnote, but it is thought-provoking stuff indeed.